Over 2 lakh Indian cases. Search powered by Google!

Case Details

M/S KAMAL CORPORATION THRU' PROP. SHIV CHARAN versus THE COMMISSIONER, TRADE TAX, U.P. LUCKNOW

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


M/S Kamal Corporation Thru' Prop. Shiv Charan v. The Commissioner, Trade Tax, U.P. Lucknow - SALES/TRADE TAX REVISION No. 908 of 2006 [2006] RD-AH 14508 (28 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.22

TRADE TAX REVISION NO.908 OF 2006

AND

TRADE TAX REVISION NO.909 OF 2006

M/s Kamal Corporation, Bindki, district Fatehpur.       ....Applicant

Versus

The Commissioner, Trade Tax U.P., Lucknow.   .Opp.party

***************

Hon'ble Rajes Kumar, J.

These two revisions under Section 11 of U.P. Trade Tax Act (hereinafter referred to as "Act") are directed against the order of Tribunal dated 29th May, 2006 relating to the assessment year 2000-01 both under the U.P. Trade Tax Act and Central Sales Tax Act.

Applicant claimed to be a purchasing agent, made purchases of wheat for and on behalf of Ex-U.P. Principal for Rs.45,67,160/-. Applicant claimed to have maintained the books of account in the form of cashbook, ledger, purchase order register, 6-R, 9-R, satti bahi, bill book etc.  Before the assessing authority applicant had furnished the list of purchases made from the farmers with reference to 6-R, date of purchases and also furnished the details of the Ex-U.P. Principal with reference to 9-R giving the details of expenses, value of goods, truck number by which the goods were transported. On the examination of the books of account and necessary details, assessing authority issued the show cause notice, which is annexure-1 to the revision, on the ground that there is difference in the date of purchase made for and on behalf of Ex-U.P. Principal and its dispatch, name and address of the farmers are not mentioned and thus, the purchases were not verifiable. Sometime payment was made to the farmers at the time of purchase and sometime on receipt of the goods. The details were sought. The purchase order for the purchase of bardana had not been produced and the purchase list of bardana was also sought. Returns were not filed. Applicant filed reply to the objections raised by the assessing authority. Assessing authority passed the assessment orders on 03.11.2004 both under the U.P. Trade Tax Act and Central Sales Tax Act.  Assessing authority had rejected the claim of the purchases made for and on behalf of Ex-U.P. Principal on the ground referred in the show cause notice and levied the tax on the purchases of wheat under the U.P. Trade Tax Act and also treated the transfer of the goods outside the State of U.P. as inter-State sales and levied the tax under Central Sales Tax Act. Being aggrieved, applicant filed two separate appeals before the Joint Commissioner (Appeals), Trade Tax Allahabad, who vide order dated 06.04.2005 rejected both the appeals. Applicant filed two second appeals before the Tribunal. Tribunal by the impugned order set aside the order passed by the first appellate authority and the assessing authority and remanded back the matter to the assessing authority to pass the assessment orders afresh.

Heard learned counsel for the parties.

With the consent of both the parties, present revision is being disposed of at this stage.

Learned counsel for the applicant submitted that the Tribunal has accepted all the pleas of the applicant in respect of the objections raised by the assessing authority for the rejection of claim of exemption on the purchases made for and on behalf of Ex-U.P. Principal, still remanded the case to the assessing authority with the direction to make enquiry from Ex-U.P. Principal and the transporter. He submitted that the Tribunal has illegally remanded back the case for giving fresh innings to the assessing authority to make enquiry while during the course of the assessment proceedings detailed enquiry in respect of the purchases made for and on behalf of Ex-Principal were made from the books of account and from the necessary details furnished in this regard, and submitted that once all the three objections which have been raised for the rejection of claim for making further enquiry is held not justified. There is no justification in remanding the case. In support of his contention he relied upon the decision of this Court in the case of Hind Vastra Bhandar Vs., reported in 23 STC, 311, A.D. And Sons Vs. CST, reported in (1989) 9 STR, 190, M/s Agarwal Khad Bhandar Vs. CST, reported in 1985 UPTC, 1044, M/s Kailash Chand Gupta, Rewa Vs. CST, reported in 2003 UPTC, 1168, M/s Nehru Steel Rolling Mills, Muzaffarnagar Vs. CST, reported in 1993 UPTC, 407, Learned Standing Counsel submitted that to accept the claim of the applicant that the purchases were made for and on behalf of Ex-U.P. Principal, it is necessary to examine whether the purchases were made on the basis of the instructions of Ex-U.P. Principal and, thereafter, goods had been despatched at the destination of the Ex-U.P. Principal and purchases and despatches were co-related to each other. To arrive at a conclusion the matter was remanded back to the assessing authority to make enquiry from the Ex-U.P. Principal and from the transporter. Thus, the remand of the case is justified.

Having heard learned counsel for the parties, I have perused the order of Tribunal and the authorities below.

I find substance in the argument of learned counsel for the applicant. Perusal of the assessment orders show that the complete books of account were produced and the necessary details of the purchases and the despatches of the goods with the name and address of the Ex-U.P. Principal and the truck number were furnished before the assessing authority. Assessing authority had not doubted that the purchases were not made for and on behalf of Ex-U.P. Principal and the goods were not despatched outside the State of U.P. at the destination of the Ex-U.P. Principal, inasmuch as the tax had been assessed under Central Sales Tax Act treating the movement of the goods from the State of U.P. to outside the State of U.P. Thus, the remand of the case to the assessing authority on a new ground to provide fresh inning is not justified. However, it is open to the Tribunal to arrive at a conclusion that whether the purchases were made for and on behalf of Ex-U.P. Principal and there were a correlation between the purchases and the despatches of the goods, Tribunal being Court of fact can examine the books of account but the remand of the case to provide fresh inning is not justified.

In the case of Hind Vastra Bhandar Vs. CST (Supra), Division Bench of this Court  held as follows:

"The power to remand a case has been conferred upon the Judge (Appeals) by section 9 (3)(b) of the U.P. Sales Tax Act which empowers the appellate authority to "set aside the assessment and direct the assessing authority to pass a fresh order after such further enquiry as may be directed".  The statute does not lay down the ground upon which the appellate authority  may remand the case. No limitations have been prescribed restricting the power. The appellate authority exercises quasi-judicial functions, and there can be no dispute that the power to remand must be exercised by it, not according to whim or humour, but in accordance with sound judicial  principles. And it is a power which must be used with circumspection. The appellate authority  functions as in impartial authority adjudicating upon rights and liabilities between the dealer and the revenue. That adjudication must be effect through a procedure informed by the interests of justice. It is to do justice in accordance with law that the appellate authority exists. It departs from its function when it permits the influence of partisan considerations."

In the case of A.D. And Sons Vs. CST (Supra),  this Court held that to pro`vide another inning to the department, Tribunal should not remand the case.

In the case of M/s Agarwal Khad Bhandar Vs. CST, (Supra), this Court held that no fresh inning can be given to the assessing authority to make out a new case, therefore, the remand of the case has been held not sustainable.

Similar view has been taken by the Learned Single Judge of this Court in the case of M/s Kailash Chand Gupta, Rewa Vs. CST (Supra)  relying upon the decision of this Court in the case of M/s Ramji Mal Govind Ram. Pilibhit Vs. CST, reported in 1984 UPTC, 889, it has been held that the remand of the penalty proceeding to plug the loophole is not justified.

In the case of M/s Nehru Steel Rolling Mills, Muzaffarnagar Vs. CST (Supra), this Court held as follows:

"No doubt the Tribunal found the contention of the applicant to be correct but it has remanded the matter on the ground that the Deputy Commissioner has not expressed any opinion on this issue. Similarly, the remand on other aspects also was unnecessarily made by the Tribunal. In my opinion a remand order should not be readily made, and it should only be made when for very strong reasons the authority cannot itself dispose of the matter on merits. It seems that these remand orders were made by the authorities merely to get rid of the case so that the authority could avoid going into the matter deeply and deciding the issue once and for all. This kind of attitude is to be deprecated."

For the reasons stated above, order of the Tribunal is liable to be set aside and the Tribunal is directed to decide both the appeals on merit in accordance to law.

In the result, both the revisions are allowed. Order of the Tribunal is set aside. Tribunal is directed to decide both the appeals on merit in accordance to the law.

Dt.28.08.2006

R./


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.